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Estate Planning Frequently Asked Questions
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.
The laws of Florida require that the testator (the maker of the will) must be at least 18 years old and that the testator is of sound mind.
A will can allow you to avoid Florida intestacy laws, name your personal representative, create a trust, devise property, make gifts to charity, reduce estate and income taxes and name a guardian for your children. You should consult with an attorney to see why you would benefit from creating a will.
If you die without a will (this is called dying “intestate”), the Florida inheritance statute determines who gets your property. The Florida inheritance statute contains a rigid formula and makes no exception for those in unusual need or for the deceased’s wishes. You should consult with an attorney to make sure that after you die your property is distributed as you see fit.
A will is “good” until it is changed or revoked in the manner required by Florida probate law. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will.
All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation. You should consult with an attorney to see if there are any changes in your circumstances to make sure that your wishes will not be affected.
Yes. No will becomes final until the death of the testator (the creator of the will). It may be changed or added to by the testator by drawing a new will or by a codicil, which is simply an addition or amendment executed with the same formalities as a will. A lawyer can assist you in ensuring that the formalities required by Florida probate law for a valid new will or codicil are properly followed.
The laws of Florida have many formalities for a will, which if they are not followed exactly will result in an invalid will. Consult an attorney who can assist you in ensuring that the formalities required by Florida probate law for a valid will are properly followed. Moreover, there is no such thing as a simple will. Even smaller estates can have complexities only foreseeable by an attorney.
A living will is an additional document under Florida Statutes which allows one to provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures. Also known as an advanced directive.
A durable power of attorney is an additional document that can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in probate court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.
A health care surrogate is an additional document under Florida law, which allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.
Yes. There are several reasons why a will can be contested which is why it is important to consult an attorney so that your will can survive a challenge in court. Some examples of why a will may be contested are lack of capacity or undue influence by another individual at time of execution of the will.
Some of the benefits are as follows:
You can avoid probate proceedings and fees;
The trust is not filed with any court upon your death which means that your financial affairs and beneficiaries remain confidential;
Your assets are immediately available to pay expenses and make distributions; and
You may avoid guardianship proceedings if you become incapacitated.
A federal tax on the value of the property held by an individual at his or her death (paid by the individual’s estate, not the heirs or beneficiaries of the estate).
The recipient of a bequest from a will or a distribution of a trust.
A transfer of property to an individual or organization under a will.
The person named in a will to administer the estate (also known as Executor).
An amendment to a will.
Creating a will is a good first step. But even once you have one, you will want to examine it periodically to make sure it continues to reflect your wishes. At the very least, your will should be reviewed and possibly revised any time you have experienced a major life change, such as: loss of a spouse, remarriage, divorce, death of an heir, significant change in health of your proposed personal representatives, changing family relationships, birth of a child or grandchild, major shift in assets, and changes in estate tax law.
No. The will can state you purposely have made no provision for that child.
If your parent is competent, have him sign the agreement. Otherwise, if you are the power of attorney or healthcare surrogate, indicate that when you sign it to avoid being a guarantor of payment.
Long term care insurance, veterans benefits, social security benefits, Medicaid.
Real Estate Frequently Asked Questions
Title Insurance is a form of indemnity insurance, which insures an owner or lender against financial loss from title defects, liens, encumbrances or other problems with the title of real property. It also covers losses and damages suffered if the title is unmarketable (or unsellable) or if there is no right of access to the land. The amount of coverage of your policy is usually the sale price of the property. Although most insurance policies are a contract where the insurer indemnifies or reimburses another party against possible specific types of loss at a future date (such as an accident or death), title insurance generally insures against losses caused by title problems that have occurred in past events. Title insurance is issued by a title insurance company.
A title insurance company is licensed under the state to issue title insurance. A representative from the title company usually acts as the closing agent for a transaction.
A closing agent is a neutral person or business that coordinates a transaction for the sale or re-finance of a property. It is the job of the closing agent to prepare the settlement statement, ensure that all documents and records are properly executed, that appropriate original documents are recorded in the county where the property is located, and makes sure that the proceeds are properly disbursed pursuant to the contract and applicable law. Closing agents will work with a lender if the property is being financed to arrange for all documents needed for the closing.
Most individuals’ biggest asset is their home and that asset needs to be protected. Title insurance will protect an owner of property if there is a problem with the title after the closing date. The underwriter or insurance company will defend against a lawsuit attacking the title of the property or reimburse the owner for the actual monetary loss caused by the defect, up to the dollar amount of insurance provided by the policy. Before closing and before a title policy is issued, a title insurance company will search the public records to develop and document the chain of title and to detect known claims against, or defects in, the title to the subject property. If there are known defects, the title company will require that the defects be cured prior to the closing. Title insurance will provide you with the peace of mind that your largest investment will be safe.
That depends. The contract for the sale and purchase of the real property should state who is responsible for the premium.
Florida title insurance rates are set by Florida statute based on the purchase price. There are also some credits given to the buyer of title insurance in certain circumstances. Please contact our office for a quote.
That depends. There are many ways to hold title in Florida: tenants in common, tenants by the entirety, life estates, joint tenants with a right of survivorship, in trust, or hold title in an entity like a corporation, partnership or a limited liability partnership. Consult with one of our real estate attorneys for more information and to learn what options works best for you.
The HUD-1 or Settlement Statement is a standard form in use in the United States, which itemizes services and fees charged to the buyer and seller in a transaction by the lender, brokers, closing agent and other third parties. The HUD-1 form is regulated by the Department of Housing and Urban Development.
Some examples of title defects are:
- Construction liens
- The property’s address being misspelled in a deed conveying title
- A mortgage lien whose repayment hasn’t been recorded
- A deed which has been signed but hasn’t been properly recorded
- An easement that has not been properly recorded
- Unpaid property taxes
- A failure to transfer property rights to a former owner of the property
- A pending lawsuit before a court of law over ownership to the property
A property survey is a sketch or map of a property showing its boundaries and other physical features. A survey reports will also show the relative location of a house, shed, other building and fences on the property, and it usually includes the position of any public or private easements. The survey will also show if there is any part of the property that is encroaching on a neighboring property or if the neighboring property is encroaching on the property that is being purchased. The report gives everyone involved in a land transfer a clear picture of exactly what is being purchased. In the U.S., property surveys must be done by a professional surveyor who is licensed in the state where the property is located.
For most closings, a survey is required to obtain title insurance. One common exception is for the purchase of an individual condominium unit. Mortgage lenders require a property survey before they will approve a loan. Even if a survey has been done in the past, lenders typically require a recent survey, generally done within six months of the closing date. An up-to-date property survey will reflect any recent changes to the property, such as the addition of a fence or driveway.
A closing of a real estate transaction is the point in time when the sale is ready to be completed. The closing is usually held at the closing agent’s office, At the Closing, the final documents pertaining to the sale/purchase of a piece of property are reviewed by the buyer, seller and other interested parties, the documents are signed as required and funds disbursed.
Many people may be present at a closing such as: the buyer, the buyer’s sales associate, the seller (or builder), the seller’s sales associate, the lender or lender’s representative, and the closing agent. Although it is not uncommon to have both parties close in a joint meeting, with today’s busy schedules, many closings occur separately.
If you cannot be present on the scheduled day of closing, please let our office know so that we can accommodate your schedule. We can try to schedule an appointment to have the documents signed before closing so that the transaction does not get delayed. If you are out of town at the time of closing, or are not able to travel to the closing, we can assist you by coordinating a mail-away closing so that the documents to be signed and delivered by mail.
That Depends. There are many factors that come in to play when trying to close a sale. Our office can close a file fairly quickly if the title is clear and the buyer is purchasing the property cash, however, every file is unique.
An estoppel letter is required when the property being sold is part of a condominium association or a homeowner’s association. It details the monthly maintenance and assessments amounts, whether there are any violations, and whether the seller’s account is paid up to date or in arrears.
To ensure that funds are good and that the funds are ready and available, Law Office of Melinda Grimaldi, PL only accepts wires.
Closing costs are the costs related to the purchase, sale or re-finance of a property. Closing costs vary depending on type of transactions. Common closing costs are as follows:
– Broker/real estate agent related
– Commission
– Broker processing fees
– Lender related
- Survey cost
- Appraisal cost
- Credit report fee
- Flood certification fee
- Origination charge
- Homeowner’s insurance
- Flood insurance
- Reserve payments for taxes and insurance
- Mortgage insurance
- Lender title insurance premium
- Lender title insurance endorsements
– Title related
- Title insurance premium
- Settlement charges
- Estoppel fee
- Tax and lien search
- Title search
- Legal fees
- Recording fees
- Documentary stamps/transfer tax
That depends. Lender related fees, if applicable, are paid by the buyer/borrower. The contract usually details who pays for which costs.
You will always need to bring valid identification with you to closing. The most common types of identification accepted are driver’s license or passport. For other items that may be needed at closing, please ask the attorney that is handling to your file.
When purchasing a property with a loan, the process usually takes a bit longer. The lender will provide us with a closing package which will have specific instructions on what needs to be done before closing.
An inspection of your property is not required, but strongly suggested. The inspection allows a buyer to know the condition of the property before purchasing. Many times, the contract requires the seller to fix problems that arise in the inspection report. The buyer usually has the right to cancel during the inspection period of the contract.
Business Law Frequently Asked Questions
The filing of Articles of Incorporation with the state is the first step in creating a corporation in Florida. This is a document that includes:
the name of the corporation
the street address of its principal office
the number and classification of any authorized shares of stock the corporation may issue
the name and address of the corporation’s registered agent to receive service of process
the name and address of each incorporator
For an LLC, this document is called Articles of Organization.
Bylaws establish and protect the rights, and specify the duties and responsibilities of an organization’s members, Board of Directors, executive committee, and others. Corporate Bylaws is an organizational document specific to each corporation, but the basic components include:
An organization’s name, purpose and office(s) location
Members
Board of Directors
Committees
Officers
Meetings
Conflict of interest
Procedure for amending bylaws
Bylaws are not used for LLCs. This information can generally be found in the Operating Agreement of an LLC.
This certificate is issued by the state where the company is registered, attesting that the company is in good standing and that it is in compliance with the Department of State’s rules and regulations (for example, the filing of an annual report with the state).
An operating agreement is an agreement among Limited Liability Company (“LLC”) members, which governs the LLC’s business, and the members’ financial and managerial rights and duties. LLCs without an Operating Agreement are governed by the state’s default rules found in Florida statutes.
An Operating Agreement is similar in function to corporate bylaws, or analogous to a partnership agreement in multi-member LLCs.
A Share Registry is a list of active owners of a company’s shares. The register includes each person’s name, address and number of shares held, but can further detail the holder’s occupation and price paid. The shareholder register is fundamental to the examination of the ownership of a company.
A fictitious name means any name under which a person transacts business in this state, other than his legal name. There are strict laws as to how this is registered with the state.
Probate Frequently Asked Questions
Probate administration is a court process to distribute the assets of a deceased person.
Assets are collected, creditors are paid and beneficiaries receive whatever remains.
Assets = Real Estate or Personal Property
Two kinds of “Probate”: Summary & Formal Administration
The existence of a Will does not eliminate the need for probate
In Florida, “Personal Representatives” are in charge of “probating” the estate
Personal Representatives have attorney representation (attorneys do most of the work)
If there is no Last Will & Testament (Will), then the assets may pass by what’s called “intestate succession.” Intestate means that there is no Will. Florida Statutes set forth who is entitled to inherit estate assets if the deceased died without a Will.
Typically, by presenting a court order authorizing inspection of the safe deposit box and/or Letters of Administration (LOA’s are actually court orders as well).
Letters of Administration are court orders issued as part of a formal administration. LOA’s authorize the personal representative to begin administering the estate, including but not limited to discussing financial details with banks and brokerages. It is not possible to get Letters of Administration without opening an estate in probate court.
Formal administration is the traditional form of probate in Florida. A personal representative (executor) is only appointed in formal administration.
Summary Administration is an abbreviated form of probate typically used when assets are valued at $75,000 or less (not including homestead value) or more than two years have passed since the date of death. A personal representative is not appointed in Summary Administration. It is sometimes referred to as “small estate administration.”
Other than attorneys’ fees, there may be costs/expenses for:
Case Filing Fees ($345–400)
Publication of a “Notice to Creditors” (range: $100–200)
Recording of Orders
Certification of Orders
Postage and/or FedEx
Costs of ordering documents (death certificates, copies of Wills, etc.)
Generally, no. Uncontested probate—where there is no dispute over the outcome of the case—will not require your presence in Florida. If an estate is contested, you may need to attend a hearing, but your attorney may be able to appear without you. Phone hearings are also permitted in many cases.
The fact that you’ve been nominated as personal representative doesn’t automatically make you the personal representative. A probate court must appoint you the personal representative.
The necessity of probate is determined by the ultimate goals. If real estate or personal property is still titled in the name of the decedent, then probate may be necessary.
Generally speaking, you can start probate whenever you’re ready. However, there are certain situations where starting probate too soon may expose the estate to creditor claims you might otherwise avoid. Once a probate case is opened, creditors can stake their claim. Note, however, there are many assets that are exempt from the claims of creditors!
This is impossible to answer without a consultation, but the general rule is if there are no assets “stuck” in the deceased’s name, then you might not need probate. Assets that are held jointly with a spouse or which have designated beneficiaries typically pass on to the heir without the necessity of probate. However, there are many other considerations that may determine if probate is truly necessary.
Obviously there will not be any inheritance to the heirs or beneficiaries, who receive assets only if all debts are paid. Florida law has a stated priority of claims, in which some claims (such as funeral expenses and final medical bills) come ahead of others. Most important, Florida law allows creditors to reach assets of the deceased which were placed in certain types of trusts, and requires those trustees to use trust assets if necessary for estate expenses and claims. Agreeing to serve as personal representative does not obligate you for the debts of the deceased; they are obligations of the estate, to the extent there are assets to pay them.
Most nontaxable estates take between six and ten months for formal administration and four to five weeks for a summary administration.
Taxable estates cannot close until the IRS signs off on the Estate Tax Return (Form 706), which must be filed within nine months after the date of death and often takes that long to prepare. Taxable estates are doing well to close in two years.
Yes, in almost all cases you will need an estate lawyer for Florida probate. Even when an estate lawyer is not strictly required, formal administration has so many technical rules and pitfalls that it can be very frustrating for a non-lawyer. Florida’s system is too complex for most personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance.Why can’t I just record the Will to change the title to my parent’s property in Florida?
Title insurance underwriters in Florida generally do not recognize a recorded will as sufficient to convey title, for two main reasons:
There is no way for title insurers to know that the recorded will was valid and was the final will of the deceased.
There are situations in which property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.
No, there is no deadline to open a probate in Florida. However, over enough time there may be multiple probate administrations needed due to the deaths of initial heirs and even children of the heirs.
At present, no. However, if a Florida estate must file a federal estate tax return, it must also file a Florida return even though no tax is owed.